The NFL has long believed it could score with an appeals court that covers mostly red states in the nation’s heartland and whose most liberal members, attorneys say, would be considered moderate on other circuits.
“All [the judges] are going to try to do what the law says, but if the law is ambiguous, and if it’s left to them to consider public policy issues, the players are going to lose,” said Jon Hopeman, an attorney who has won more than 50 cases in front of the Court of Appeals for the 8th Circuit, which is based in St. Louis.
“If the NFL can’t win before the 8th Circuit, they can’t win anywhere.”
The stakes will be high when the appellate panel meets again June 3 to consider whether U.S. District Judge Susan Richard Nelson erred last month when she ordered the NFL to end its lockout of players. NBA players, whose collective-bargaining agreement with the league expires at the end of June, are keen to determine whether they should mimic the football players’ strategy. The NHL is so interested in the outcome of the case it submitted a brief on the NFL’s behalf.
Both realize that an NFL victory on appeal not only would be a blow to NFL players, forcing them to consider abandoning their lawsuit and accepting bargaining concessions if they hope to receive paychecks this season, but also would have consequences throughout professional sports.
It likely would discourage future groups of players from following the NFL players’ lead and abandoning their union representation to challenge sports leagues in federal court, where the leagues historically have been vulnerable to anti-trust claims. (Except for Major League Baseball, which has an antitrust exemption.)
When NFL players took their fight with the league over how to divide $9.3 billion in annual revenue into Nelson’s Minneapolis courtroom, they won Nelson’s overwhelming support in an 89-page ruling. But the strategy may have hit a wall with the 8th Circuit.
“For the average player, there’s a lot at risk here,” said Jessica Horewitz, a former NFL Players Association economic analyst who is currently a director at the Arlington-based consulting firm Gnarus Advisors LLC. She added that Monday’s ruling “definitely swings the pendulum. [But] I don’t think we’re talking about a big swing. I think we’re talking about on the edges.”